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1822 Sept. 25
Tripoli Securities against Misrule
Preliminary Explanations
?.10. Analytical view
?.10 Heads under which the Securities may be ranged
The way may now perhaps be found sufficiently prepared for a list of the several shapes in which the evil - oppression is liable to operate. The provision of detail by which the remedy is endeavoured to be applied will follow under these several heads when the nature and use of the remedy have been explained. Meantime, by a short distinction however the nature of them will in some instances be rendered the more distinctly visible. Oppression may accordingly be distinguished into primary and persevering into that which is in its original state, and that which is in a more matured and rooted state: in the one case it may be stiled simple oppression; in the other case ultra-oppression
Modes of Oppression against which security is here endeavoured to be provided are as follows -
1. Vexation on the account of religion: or say Religious persecution. NB. In this particular case, what may happen is - that the Sovereign, if from oppression on this account he does not himself derive any particular gratification, may be content to deprive his successors of it: while, by his own act he stands deprived of the power only because he has no desire to make use of it, they will by the same act stand deprived of it even though they should have the desire to make use of it. In this case therefore a direct promise of non-exercise, or even a direct appropriate abdication may, not without hope under favorable circumstances be sued for at his hands.
2. Secret Confinement, viz of the person of an individual: confinement, namely within the walls of a prison, or within any other less narrow space.
3. Secret Banishment: i.e. by forcible exportation or in any other way exclusion of an individual from the whole of the dominion of the state in question, or from this or that part of it.
4. Secret Homicide.(a)
5. Mysterious disappearance: namely disappearance of an individual from a cause as yet unknown: it may be any of the above three - confinement, banishment, or death.
Note(a)
(a)Against vexation in all these three shapes provision is of course already made in the existing system of law whatever it may be, and, the vexatious act being made punishable, secresy is of course an accompaniment endeavoured to be given to it. But when hands by which the injury is inflicted are of the number of those which are armed with power, that power extends to the giving to the whole operation a degree of secresy beyond any which could be given to it by ordinary and powerless hands and for the maintenance of secresy, even where power is irresistible the avoidance of odium affords commonly an adequate inducement. By the arrangements proposed under these heads secresy will be found combated by instruments of elucidation of which none are every where in use and of which some are not any where as yet in use.
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Title: [1822 Oct. 30 Tripoli. Securities against]Description: 1822 Oct. 30 Tripoli. Securities against Misrule Preliminary Explanations ?.2 Misrule - Shapes Under the general name of vexation may be included every political evil, in so far as the consideration of it is confined to the sufferings of determinate and assignable individuals: namely the individual persons who are the immediate sufferers by the individual mischievous act in question. Oppression is vexation, considered in so far as the hand of power is considered as occupied in the production of it. Thus, if inflicted without sufficient warrant, i.e. without being necessary to the preserving the community from evil of still superior magnitude,- homicide, confinement, and banishment, are, if produced by a hand not armed with legal power, acts of vexation simply: if by a hand armed with legal power - if for example by the hand of the Sovereign, /they/ acts of oppressive vexation, or in one word oppression. In oppression by the hand of rulers, two stages are discernible, and require to be distinguished. By oppression in its first stage, the disease is produced as above: By oppression in the second and last stage, the remedy is excluded or endeavoured to be excluded. By the same act, whereby oppression in this its last stage is exercised, oppression in the first stage may also be exercised: it is so in most instances, in those several cases in which the evil has been spoken of as being of a mixt, or public and a private nature: the afflicting hand wounding the public through the sides of individuals. Examples. 1. Political gagging; 2. National debilitation, as above.
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Title: [1822 Sept. 29 Tripoli. Securites against]Description: 1822 Sept. 29 Tripoli. Securites against Misrule Preliminary Explanations So again as to judicial procedure. In so far as the forms already in use are adequate to the purpose of giving execution and effect to the several proposed arrangements, it is well. But if in any instance they are otherwise than adequate, new ones must be provided, or the security which it is desired should be possessed can not be afforded: whatsoever be the necessary means, he who determinately desires the attainment of the end, can not but desire the employment of those or other adequate means. By these observations a sufficient apology, or rather a justification, will, it is hoped, be found afforded, not only for several definition and penal enactment, but even for some institution, which in the country in question may not improbably present a face of novelty. Among institutions for example, not only the celebrated one so uncharacteristically expressed in English by the two Latin words Habeas Corpus (have the body) but the one known in England by the name of the Coroner's Inquest. Of the Habeas Corpus the use is - to afford a remedy against clandestine or pertinacious imprisonment or confinement of the person: a remedy, terminative or preventive, as the case may be. Of the Coroners Inquest the use is to throw the light of notoriety upon every such death as shall afford grounds for suspecting that the hand of man has in the production of it borne an improper part. But of the three distinguishable causes by any of which the disappearance of a human being where it has had injury for its cause may alike have been produced death and confinement are but two. The other is banishment. For ascertaining, by which of them all such disappearance, where it has place has been produced, no course of procedure is (it is believed) to be found in any system of law as yet known. To this deficiency an attempt to furnish a supply will here be found under the head of Mysterious Disappearance.
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Title: [1822 Sept. 23 Tripoli Securities against]Description: 1822 Sept. 23 Tripoli Securities against Misrule ?6. V. Secret Banishment Observations on the subject of preventive measures /measures of prevention/ against injurious and secret banishment For security against secret and injurious banishment two obvious measures of the preventive cast /kind/ present themselves. One is - prohibiting egress without a passport; the other is prohibiting egress without previous entry of the fact in an official Register book. It may perhaps be too much to say that in no state of things either of these means ought to be employed: but what may be said with truth is - that generally speaking the evil of the remedy will preponderate /be found preponderant/ over the good. The state of things will be an extraordinary one if for one instance in which the egress is involuntary on the part of the individual there will not be hundreds not to say thousands in which it is voluntary Say for argument's sake, one thousand. Here then in the hope of saving from the greater vexation a single person, a thousand are subjected to the lesser. But in the case where a passport is rendered necessary, neither in its length nor therefore in the /its/ aggregate amount has the vexation any certain limit. Power without limitation over every one who has need of the passport is thus given to the functionary or functionaries whoever they be whose signature or signatures are necessary to the giving validity to it: and thus to save /for the hope of saving/ one from injurious banishment, a thousand are exposed to arbitrary confinement confinement not the less vexatious for not being injurious. /against law/. In the case where simple registration is all that is required, the power of granting or refusing the passport not being given in a direct way, the danger of abuse may seem as if materially lessened if not removed. It is not by a great deal however so effectually lessened in reality, as in appearance; for still so long as the minute in question remains unmade, the confinement is as effectual as if it had been a passport /the case had been that of a passport/ that had been delayed.
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